Worth v. Wamsley et al

Filing 25

REPORT AND RECOMMENDATIONS: IT IS RECOMMENDED that Defendants Motion to Dismiss be GRANTED re 14 filed by Sherri Rose-Smith, Brenda Wamsley Objections to R&R due by 11/3/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on 10/20/17. (jlk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
WILLIAM A. WORTH, II,
Plaintiff,
Civil Action 2:17-cv-43
Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers

v.

BRENDA WAMSLEY, et al.,
Defendants.

REPORT AND RECOMMENDATION
This matter is before the Court for consideration of Defendants’ Motion to Dismiss (ECF
No. 14.), Plaintiff’s Response in Opposition (ECF No. 17), and Defendant’s Reply (ECF No.
21). For the reasons that follow, it is RECOMMENDED that Defendants’ Motion to Dismiss
be GRANTED.
I. BACKGROUND
Plaintiff, a prison inmate under the custody and control of the Ohio Department of
Rehabilitation and Correction, brings his claims pursuant to 42 U.S.C. § 1983 alleging violations
of his First Amendment right to meaningful access to the courts. (Doc. No 1 at 2.) Plaintiff
asserts that Defendants1 interfered with his First Amendment access to the courts by delaying the
submission of his legal mail to the Ohio courts. (Id. at 4.) Plaintiff is monetary relief in the
amount of $25,000 compensatory and $50,000 punitive damages against each Defendant, as well
as fees and costs. (Id. at 7.)

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Plaintiff’s Complaint states two named defendants and an unspecified number of John/Jane
Doe defendants.

Plaintiff’s Complaint states that he filed motions to reopen and reconsider denial of his
state criminal appeal in the Ohio Tenth District Court of Appeals on the grounds of ineffective
assistance of appellate counsel and merger of related offenses. (ECF No. 1-1.) The appeals
court denied his applications for reopening and reconsideration of his appellate case as untimely
on May 26, 2016. (Id. at 4, 6.) According to Plaintiff, his discretionary appeal to the Ohio
Supreme Court was due on July 10, 2016. (ECF No. 1 at 4.) Plaintiff claims that “around a
week before the . . . deadline,” he sought notary services from Defendant Smith who allegedly
declined to notarize Defendant’s affidavit of indigency and told Plaintiff to procure an affidavit
form from the prison cashier, per institutional policy, along with a six-month financial
certification and financial statement of his prison account.2 (Id.) Plaintiff states that he
requested the affidavit and related financial statements on August 8, 2016. (Id. at 5.) Plaintiff
also states that he received the documents on August 15, 2016, but found that the prisonprovided affidavit was for use in the Ohio Court of Claims, rather than the Ohio Supreme Court.
(Id.) Plaintiff subsequently filed various administrative grievances and appeals before filing his
Complaint in this matter on January 13, 2017. (Id. at 5-6.) Defendants filed their Motion to
Dismiss on April 13, 2017. (ECF No. 14.)
II. Standard of Review
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements
set forth in Federal Rule of Civil Procedure 8(a). Under Rule 8(a)(2), a complaint must contain a

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Although Plaintiff calls this policy “clandestine” throughout his Complaint, it is apparent from
various inspectors’ reports to him that ODRC is very open about its notarization policies. (ECF
No. 1-1 at 15, 18.)
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“short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual demands on the authors of
complaints.” 16630 Southfield Ltd., P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir.
2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted).
Further, the Court holds pro se complaints “‘to less stringent standards than formal
pleadings drafted by lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010
WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)). This lenient treatment, however, has limits; “‘courts should not have to guess at the
nature of the claim asserted.’” Frengler v. Gen. Motors, 482 F. App’x 975, 976-77 (6th Cir.
2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

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III. Analysis
Plaintiff brings his claims against Defendants under 42 U.S.C. § 1983, which provides as
follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceedings for redress.
In order to proceed under § 1983, a plaintiff must prove both that (1) the perpetrator acted under
color of state law; and (2) the conduct deprived the complainant of rights, privileges, or
immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S.
527, 535 (1981); Brandon v. Allen, 719 F.2d 151, 153 (6th Cir. 1983), rev’d and remanded sub
nom, Brandon v. Holt, 469 U.S. 464 (1985). As a general rule, a plaintiff proceeding under
§ 1983 must allege that the deprivation of his rights was intentional or at least the result of gross
negligence. Davidson v. Cannon, 474 U.S. 344, 348 (1986). Mere negligence is not actionable
under § 1983. Chesney v. Hill, 813 F.2d 754, 755 (6th Cir. 1987).
In considering Plaintiff’s claims, the Undersigned is mindful that prisoners enjoy a First
and Fourteenth Amendment right of access to the courts. Lewis v. Casey, 518 U.S. 343, 354
(1996). A prisoner has a First Amendment right to send mail. Hudson v. Palmer, 468 U.S. 517,
547, 104 (1984). A restriction on this right is valid “only if it is reasonably related to legitimate
penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 (1987). Prison officials deny
prisoners their right to access the courts by depriving them of a “reasonably adequate
opportunity” to challenge their sentence or conditions of confinement. Bounds v. Smith, 430
U.S. 817, 828 (1977); Lewis 518 U.S. at 354–55. To prove a constitutional deprivation,
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however, it is not enough to show that defendants denied a prisoner access to legal materials.
Lewis, 518 U.S. at 249–51. A plaintiff must show “specific or concrete prejudice to his cause.”
Pilgrim v. Littlefield, 92 F.3d 413, 415–16 (6th Cir. 1996). Such specific or concrete prejudice
includes the dismissal of an appeal because late mailing of a prisoner’s claim of appeal by prison
officials caused it to be filed late, resulting in the dismissal of the appeal. Dorn v. Lafler, 601
F.3d 439, 444 (6th Cir. 2010). A plaintiff must allege that the prison official's conduct amounted
to denial of access to the courts or some form of censorship of speech. See Corsetti v. McGinnis,
24 F. App’x. 238, 241 (6th Cir. 2001) (“Regarding the alleged reading of Corsett’s legal mail and
legal materials, Corsetti has not alleged, nor is there any evidence, that any papers were seized or
that the defendants’ reading of the papers caused actual injury or ‘hindered his efforts to pursue a
legal claim.’” (quoting Lewis, 518 U.S. at 351)); see also Wardell v. Duncan, 470 F.3d 954, 959
(10th Cir. 2006) (“A plaintiff must show that non-delivery of his legal mail resulted in actual
injury by frustrating, impeding, or hindering his efforts to pursue a legal claim.”) (internal
quotation marks and citations omitted). An isolated incident of inadvertent mail interference
does not state a claim that rises to the level of constitutional magnitude, and is therefore not
actionable under § 1983. Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990); Stevenson v.
Koskey, 877 F.2d 1435, 1441 (9th Cir. 1989); Morgan v. Montanye, 516 F.2d 1367, 1370-71 (2d
Cir. 1975); Bach v. Illinois, 504 F.2d 1100, 1102 (7th Cir. 1974); Jackson v. Williams, No. 1:11CV-01841, 2011 WL 6326123 at *2 (N.D. Ohio Dec. 16, 2011); Searcy v. Culhane, No. 09–CV–
10174, 2009 WL 1864028 at *7 (E.D. Mich. June 29, 2009). To succeed, a plaintiff must show
more than mere negligence on the part of defendants. See Gibbs v. Hopkins, 10 F.3d 373, 379

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(6th Cir. 1993) (“These actions, if proven, and if intentional, support the claim that prison
officials are attempting to deny prisoners effective access to the courts.”)
A. Plaintiff’s Allegations of Causation are not Facially Plausible
The Undersigned finds that Plaintiff has failed to make a facially plausible allegation of
causation. “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. According to Plaintiff, Defendant Smith refused to notarize his
affidavit of indigency “around a week before the 07/10/16 deadline.” (ECF No. 1 at 4.) Plaintiff
admits in his pleading, however, that he did not request the ODRC-provided affidavit of
indigency until August 8, 2016, some four weeks after his deadline to file in the Ohio Supreme
Court. (Id. at 5.) Plaintiff made no effort to timely acquire the required affidavit and financial
statements according to the ODRC policy. (Id.) Indeed, Plaintiff does not even allege that he
attempted to file his appeal with the Ohio Supreme Court. Even accepting Plaintiff’s allegations,
then, the Court could not conclude that Defendants’ inactions caused Plaintiff to miss his filing
deadline. The Undersigned finds, therefore, that Plaintiff has failed to allege facts showing
facially plausible causation. Iqbal, 556 U.S. at 678.
B. Plaintiff’s Underlying Legal Cause is Futile
The Undersigned also finds that Plaintiff has failed to show “specific or concrete
prejudice to his cause” as a result of Defendants’ alleged inactions. Pilgrim, 92 F.3d at 415–16.
In order to show prejudice, a plaintiff’s underlying legal cause must be non-frivolous. Hadix v.
Johnson, 182 F.3d 400, 405-406 (6th Cir. 1999). In the instant case, Plaintiff sought to reopen
his appellate case on the basis of ineffective assistance of appellate counsel. The appeals court

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denied Plaintiff’s application to reopen for extreme untimeliness and lack of good cause. (ECF
No. 1-1 at 4, 6.) The appellate court noted that the Ohio Rules of Appellate procedure governing
appeals based on a claim of ineffective assistance of appellate counsel require filing “within 90
days of journalization of the appellate judgment” absent good cause. (Id. at 4; see Ohio App. R.
26(B)(1).) Plaintiff filed his appeal nearly four years after the initial appeals court decision. (Id.
at 4.) Additionally, the appeals court found that Plaintiff failed to show good cause because he
based his application to reopen on a future development of Ohio law that appellate counsel had
no duty to anticipate. (Id. at 4-5.)
Furthermore, “a prisoner’s right to access the courts extends to direct appeals, habeas
corpus applications, and civil rights claims only.” Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th
Cir. 1999). The Supreme Court of Ohio, in answering a certified question from the U.S. District
Court for the Northern District of Ohio, has held “proceedings to reopen appeal from the
judgment of conviction and sentence, based on a claim of ineffective assistance of appellate
counsel, are collateral postconviction proceedings and not part of the direct appeal process.”
Morgan v. Eads, 2004-Ohio-6110, 104 Ohio St. 3d 142 (Ohio 2004.), syllabus. Plaintiff’s
prosecution of his ineffective assistance of counsel claim, therefore, is not protected by the First
and Fourteenth Amendments, leaving a Section 1983 remedy unavailable against Defendants.
Last, the appeals court found Plaintiff’s application for reconsideration time-barred, as
well. (Id. at 6.) The appeals court also noted that Plaintiff’s application for reconsideration
improperly presented a novel legal argument that was not raised previously. (Id.; Waller v.
Waller, 7th Dist. No. 04 JE 27, 2005-Ohio-5632, ¶ 3 (“A motion for reconsideration pursuant to
App. R. 26(A) is not an opportunity to raise new arguments that a party simply neglected to

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make earlier in the proceedings, but rather, is an opportunity to correct obvious errors in the
appellate court’s opinion in order to prevent a miscarriage of justice.”). Plaintiff’s application
for reconsideration, therefore, is futile.
The Undersigned finds, therefore, that Plaintiff has failed to plead the requisite prejudice
because his underlying legal cause is futile. Hadix, 182 F.3d at 405-406.
C. Plaintiff has Failed to Plead Intent
The Undersigned finds that Plaintiff has failed to plead that any constitutional deprivation
resulted from Defendants’ intentional conduct. Plaintiff claims that Defendant Smith refused to
notarize his hand-made affidavit and directed him to obtain an ODRC-provided affidavit of
indigency. (ECF No. 1 at 4.) Plaintiff does not assert that Defendants refused to notarize his
document in order to delay or prevent sending of his legal mail. Rather, Plaintiff states that
Defendant acted according to ODRC policy, which institutional inspectors confirmed in their
reports. (Id.; ECF No. 1-1 at 15, 18.) Neither does Plaintff allege that Defendants even knew his
filing deadline. At most, Plaintiff has alleged negligence on the part of Defendants. To state a
claim under Section 1983, however, Plaintiff must allege more than mere negligence. Gibbs, 10
F.3d at 379. The Undersigned finds, therefore, that Plaintiff has failed to plead intentional
conduct as required by the statute.
IV. CONCLUSION
For the reasons explained above, Plaintiff has failed to state a claim on which relief may
be granted against Defendants. Accordingly, the Undersigned RECOMMENDS that
Defendants’ Motion to Dismiss be GRANTED. (ECF No. 14.)

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PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, it
may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
IT IS SO ORDERED.

Date: October 20, 2017

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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